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Election Law @ Moritz

Election Law @ Moritz


Commentary

Analysis of Coleman Claim Re: Uninitialed Ballots

The Coleman v. Franken Notice of Contest filed on Tuesday states that poll workers "in several precincts failed to initial the backs of Ballots under their control as required by Minnesota law and failed to prevent the deposit of Ballots without such endorsement in the Ballot boxes and voting machines" (see p. 6). This is the first time such an allegation has been made by either of the campaigns. The Notice does not state what should be done if this allegation is proven, but the fact that the allegation is made at all suggests that Coleman lawyers believe this issue is material to determining the true result. (Franken's attorney is interpreting the allegation that way.) Is it? The materiality of the allegation depends on two issues: first, whether more ballots were cast in each precinct than the number of voters who signed in to vote and, second, whether the initials are missing due to fraud.

Minnesota law requires poll workers to prepare paper ballots for voting by placing their initials on the backs of the ballots before issuing them to the voter. MSA 204C.09. At least two poll workers are supposed to initial each ballot. This requirement "is intended to assure the voter that he is given an authentic ballot, to enable the public to identify the actual ballot cast in the event of an election contest, and to prevent fraud." Johnson v. Trnka, 277 Minn. 468, 470 (1967). During the actual conduct of the election this requirement is "mandatory" and must be followed. Id. However, after the election, if officials discover that poll workers did not follow the requirement, it is "directory" and generally will not result in discounting ballots in the absence of fraud or other impropriety. Id.

There is one exception to this policy: Minnesota statutes explicitly command officials to discount uninitialed ballots when there are "excess" ballots in the polling place. Excess ballots exist when the number of ballots cast in the polling place exceeds the number of voters who signed the poll book prior to voting. Excess ballots indicate one or both of two things: that some legitimate voters were permitted to vote without signing in, or that "extra" ballots somehow made it into the ballot box, as in the case of ballot box-stuffing. When excess ballots exist, during the polling place count poll workers should first discount any uninitialed ballots, and then randomly discount sufficient remaining ballots until the excess is eliminated. MSA 204C.20. If this is not done at the time of the original count, the court in an election contest can order it to be done. Exhibit E of the Notice of Contest (p. 118) identifies two precincts where a total of 48 excess ballots were allegedly cast, which may or may not have been initialed. Furthermore, it is possible that further such precincts will be identified as the contest moves into the discovery phase.

Because of these rules, Coleman can make the "uninitialed ballots" issue count only by persuading the court that at least one of two things is true: 1. excess ballots were cast and officials did not eliminate the uninitialed ones from the count, or 2. the uninitialed ballots indicate fraud. If the first allegation is proven, the statutes and cases clearly indicate that the excess uninitialed ballots should be discounted. If this scenario occurs, the court may be in the uncomfortable position of having to decide between a decision that fits with statutes and precedent and one that counts the ballots of all legitimate voters.

Regarding the second possibility, Coleman makes allegations of fraud in the Notice, including instances of double-voting and ineligible persons voting, but it remains to be seen whether he can produce persuasive evidence of this fraud and then tie it to the uninitialed ballots. Documentary evidence of fraud could be hard to come by, but it is possible that Coleman could find eyewitnesses who believe they saw fraud occur. Furthermore, if it turns out that more uninitialed excess ballots were cast than could reasonably be expected in the absence of fraud (whatever number that might be), that fact by itself could be used as evidence of fraud in a sort of bootstrapping way. If the court finds that the lack of initials indicates fraud and that the number of such ballots exceeds the margin of victory, then this issue could change the result of the election.

Contributed by Nathan Cemenska, Web Editor.

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It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

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